On appeal from the Superior Court of New Jersey, Law Division, Union County, 04-07-0746-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 23, 2008
Before Judges Winkelstein and Fuentes.
A Union County grand jury indicted defendant, Rodney McRae, charging him with the following offenses: third-degree possession of heroin and/or cocaine, N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of heroin and/or cocaine with the intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count two); and third-degree possession of heroin and/or cocaine with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count three). A jury convicted defendant of all counts. After denying the State's motion for a mandatory extended prison term pursuant to N.J.S.A. 2C:43-6f, the court merged counts one and two with count three, and on the latter count, imposed a five-year prison term with a three-year period of parole ineligibility.
Defendant appealed from his conviction, raising the following legal arguments:
THE TRIAL COURT'S DECISION TO DENY THE STATE'S APPLICATION FOR AN EXTENDED TERM SENTENCE AS NOT TIMELY FILED SHOULD BE UPHELD.
DURING HIS SUMMATION, THE PROSECUTOR COMMITTED MISCONDUCT AND DEPRIVED DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL UNDER THE 14TH AMENDMENT AND ARTICLE 1, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION (Not raised below).
THE TRIAL COURT ERRED IN ALLOWING THE EXPERT TO TESTIFY AND ANSWER HYPOTHETICAL QUESTIONS BECAUSE THE TESTMIONY DID NOT ASSIST THE JURY IN UNDERSTANDING THE FACTS AND WAS UNDULY PREJUDICIAL (Not raised below).
The State appealed from the trial court's denial of its motion for an extended term.
We reject defendant's arguments and affirm his conviction. We reverse the trial court's order denying the State's motion for an extended term and remand for resentencing.
On April 25, 2004, patrolman Todd Kelly and his partner parked their unmarked police vehicle on the 200 block of Bond Street in Elizabeth, facing west toward the intersection of Third and Bond, to conduct surveillance. This intersection is within 1000 feet of Saint Patrick's High School.
Officer Kelly observed two men standing at the northeast corner of the intersection. He recognized one of the men as Kevin Hills, but he did not recognize the second man. Soon, a third man, later identified as Maurice Paterson, joined the two men, had a brief conversation with them, and then walked away. Next, a Hispanic male joined the two men, and another individual, later identified as defendant, approached the men. After a discussion, the men crossed the street and walked toward a vacant building. Hills stood in the center of the intersection, looking up and down the street, and then motioned to defendant who was standing in front of the vacant building. Defendant approached one of the building's windows, reached on top of the window ledge, and removed something. According to Kelly, defendant "appeared to manipulate, something" and then placed the item back on top of the window ledge.
Defendant returned to the area where the Hispanic male was standing and handed him something from his closed hand. In return, the man handed defendant something from his closed hand. The Hispanic male then left the scene; as defendant walked back across the intersection, he appeared to be counting paper money. Kelly saw defendant fold the money and place it into his front right pants pocket.
When police backup arrived, the officers arrested Hills and defendant, finding fifteen dollars in defendant's front right pocket and approximately twenty dollars in his front left pocket. On the window ledge from which defendant had removed the item, Kelly found nine vials of cocaine and nine glassine envelopes of heroin.
At trial, Detective Christopher Gulbin of the Union County Prosecutor's Office testified as an expert in the distribution, sale, packaging, use and identification of controlled dangerous substances (CDS). He had been a detective for fifteen years, and he had participated in over 800 narcotics-related investigations and approximately 400 narcotics-related arrests. Based upon his experience and training, he was familiar with the way narcotics are packaged and sold. He had witnessed street level narcotics distribution "[w]ell over 50 to 100 times," and regularly spoke with confidential sources and other members of law enforcement to obtain current information about drug trafficking trends.
After the detective was qualified as an expert, the State presented him with a hypothetical fact pattern, similar to the facts in the case, and asked him to opine whether the individual in the hypothetical possessed the drugs for personal use, for distribution, or both. The detective opined that the hypothetical individual possessed the drugs with intent to distribute. He based his opinion on eight factors: (1) the quantity of the CDS; (2) the packaging of the CDS; (3) the variety of the CDS; (4) the stash location; (5) the observations of the police officer; (6) the money seized; (7) the monetary value of the CDS; and (8) the geographical area.
Defendant testified. He claimed that on the day of the drug transaction he was walking to his aunt's house with two friends, Kevin Hills and Maurice Paterson, and while crossing the intersection of Third and Bond Streets, officers "jumped out in front of [him]," grabbed him, and handcuffed him. He denied involvement in the drug transaction.
On December 8, 2005, the jury convicted defendant. On December 14, 2005, the State applied for a mandatory extended term pursuant to N.J.S.A. 2C:43-6f. The State's application included an affidavit, ...